from the questions-to-ask dept
A group of activist organizations recently sent Senator Whitehouse a letter protesting his CFAA Amendment, and noting that while he thinks it's just being used against nefarious computer hackers, that's not the case. The CFAA is regularly used against plenty of others as well, including some people that Senator Whitehouse might even support. For example, the letter points to a case from a few years ago, Pulte Homes v. Laborers' International Union, in which the 6th Circuit decided that a union telling its members to call and email a company they were protesting violated the civil portion of the CFAA. The case involved the union telling its members to call and email Pulte Homes, which apparently slowed down their computer systems, and the court ruled that was enough "intentional damage" to qualify as a CFAA violation:
The following allegations illustrate LIUNA’s objective to cause damage: (1) LIUNA instructed its members to send thousands of e-mails to three specific Pulte executives; (2) many of these e-mails came from LIUNA’s server; (3) LIUNA encouraged its members to “fight back” after Pulte terminated several employees; (4) LIUNA used an auto-dialing service to generate a high volume of calls; and (5) some of the messages included threats and obscenity. And although Pulte appears to use an idiosyncratic e-mail system, it is plausible LIUNA understood the likely effects of its actions—that sending transmissions at such an incredible volume would slow down Pulte’s computer operations. LIUNA’s rhetoric of “fighting back,” in particular, suggests that such a slow-down was at least one of its objectives. The complaint thus sufficiently alleges that LIUNA—motivated by its anger about Pulte’s labor practices—intended to hurt Pulte’s business by damaging its computer systems.This seems notable, because sending lots of calls and emails is a pretty standard activist/protest mechanism, used all the time. The idea that it might be considered a CFAA violation is immensely troubling. And it should be doubly so for Senator Whitehouse, given that he's received tremendous support from unions in the past. According to Open Secrets, two of his largest funders are the Service Employees International Union and the Teamsters. He's also received lots of money from Ocean Champions, an activist group focused on protecting our oceans. And, yet, at the same time, he seems to be ratcheting up a law that might be used against some of their activism. Meanwhile, his PAC has received lots of support from unions as well, including the Sheet Metal Workers Union and the International Brotherhood of Electrical Workers.
As the letter from the activist groups note:
No government that respects the public's right to speak and organize should ban such behavior, yet that is precisely what the CFAA has been interpreted to do. That activists must work under fear of such exposure redounds to the benefit of corporations that are exploitative of their workers, polluters, and others who stand opposed to our shared progressive values.The letter further notes that one of the key parts of Senator Whitehouse's amendment, about "botnets," will almost certainly be used against online activists, who seek to bring a bunch of internet users together to speak out. Given the way Senator Whitehouse reacted last week, it seems unfortunately likely that this letter will fall on deaf ears. But it's important to recognize that just because you claim a law will be used against "cyber criminals" doesn't mean that it won't be used to stifle things like activism that you might actually support.